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Oped: What Kavanaugh could change

David A. Super, Tribune News Service
Published 6:15 a.m. ET July 17, 2018

Hillary Namba, left, of Seattle, holds a wire coat hanger and a sign that reads "We Won't Go Back," Tuesday, July 10, 2018, as she takes part in a protest in Seattle against President Donald Trump and his choice of federal appeals Judge Brett Kavanaugh as his second nominee to the Supreme Court. Kavanaugh plunged into his confirmation battle Tuesday, as a fierce debate unfolds over abortion rights, executive power and legal issues that could remake the court for decades. (AP Photo/Ted S. Warren)(Photo: Ted S. Warren / AP)

After a buildup worthy of a master of reality TV, President Trump has nominated Judge Brett Kavanaugh for the Supreme Court vacancy created by Justice Anthony M. Kennedy's retirement. This continues a run of almost 50 consecutive years when the court has had a majority of Republican appointees.

The starting point on Kavanaugh has to be abortion. Kennedy, the court's primary swing justice for at least a dozen years, became increasingly antagonistic to Roe vs. Wade over the years. He never was willing to cast the fifth vote to overrule it directly, surely aware of the turmoil that would result. If Roe were overturned, abortion would dominate state politics — and elections — across the country for the next several years. Kennedy valued continuity and gradualism; triggering that sort of upheaval wasn't in his nature.

If Kavanaugh is confirmed, he is unlikely to be similarly reticent. Of many very conservative judges around the country, he was among the handful that the Federalist Society short-listed and sent to Trump. What almost certainly made Kavanaugh (and the others on the Federalist list) stand out is that they gave the list-makers maximum confidence that they would cast the decisive vote against Roe. Nobody should let the theater of confirmation hearings, or vague promises to respect precedent, obscure that fact.

Same-sex marriage is slightly more complicated. The court grounded its most important decisions protecting same-sex couples on the same right to privacy that underlies Roe. The most straightforward way to eliminate constitutional protection for the right to abortion is to reject or limit the right to privacy. Doing so would also remove the constitutional foundation for protecting same-sex couples. A decision against Roe implies that marriage equality too would be imperiled.

Kavanaugh's judicial history also bears on a set of cases about how courts enforce what is indisputably the law. For example, when a university broke federal privacy laws in disclosing confidential information to a state agency, a closely divided Supreme Court held that the injured student could not obtain redress. He could only wait and hope that the federal government would do something. With the Trump administration openly refusing to enforce laws and regulations with which it disagrees, refusing to allow victims their day in court is tantamount to repealing the law itself. In a similar case, Kavanaugh enthusiastically rejected a cook's right to argue that he was fired in illegal retaliation for reporting health and safety violations. Again, the government could have pursued the question but not the individual, even though it meant the law went unenforced.

Another set of cases Kavanaugh would likely decide concerns employers, credit card companies and other big businesses and their clear obligations under the law or under their own contracts. To get around those obligations, employers and businesses require employees or customers to sign arbitration clauses. In theory, these provide an out-of-court means of resolving disputes. In practice, the arbitrators are handpicked by the companies' trade associations, and the procedures are deliberately made so burdensome that people often cannot afford to press legitimate complaints. In several closely divided opinions, the Supreme Court has prevented states from protecting their residents against the abusive contract provisions. Similarly, in a case that came before him, Kavanaugh found in favor of the clauses or their outcomes.

Especially crucial in these times: Are justices willing to act independently even at the cost of disappointing those who brought them to the court? It is difficult to find examples of such courageous, independent moves in Kavanaugh's decisions.

— David A. Super is a professor of law at Georgetown University, where he studies constitutional law, administrative law and legislation.

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